Tomar v Khatri - [2024] NZCA 301

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA777/2023
[2024] NZCA 301

BETWEEN	VIN TOMAR Appellant
AND	MONIKA KHATRI Respondent

Court:	Goddard and Palmer JJ
Counsel:	Appellant in person Respondent in person
Judgment: (On the papers)	8 July 2024 at 10.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe Registrar is directed to appoint counsel to assist the Court, if an appeal is commenced.
CThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

The High Court judgment that Mr Tomar seeks to appeal

On 18 November 2021 the High Court delivered a judgment dismissing an application by Ms Khatri for an order under s 166 of the Senior Courts Act 2016 restraining Mr Tomar from commencing or continuing civil proceedings against her.[1] However Downs J made an order in the exercise of the inherent jurisdiction of the Court prohibiting Mr Tomar from bringing further proceedings in the following terms:[2]
[63]     Mr Tomar is prohibited from:
(a)       Continuing all existing litigation in the High Court;
(b) Bringing new proceedings in this Court in which Ms Khatri is a party or the proceeding is about or in any way related to Ms Khatri;
(c)       Filing applications of any sort in relation to (a) or (b);
Unless he first pays Ms Khatri, in full, $98,998.15 in outstanding costs.
[1]Khatri v Tomar [2021] NZHC 3091 [High Court judgment].
[2]Emphasis original.
Mr Tomar’s pending litigation in the High Court was stayed pending payment of the outstanding costs awards.[3]

Mr Tomar’s first appeal from the High Court judgment

[3]At [64].

On 15 December 2021 Mr Tomar filed a notice of appeal in this Court in relation to the High Court judgment. However Mr Tomar failed to file a case on appeal as required by the Court of Appeal (Civil) Rules 2005 (Rules).[4] As a result, his appeal was deemed to be abandoned on 17 May 2022 under r 43 of the Rules.

Mr Tomar’s second attempt to appeal from the High Court judgment

[4]Court of Appeal (Civil) Rules 2005, rr 39 and 40.

Mr Tomar has now decided that he does wish to pursue an appeal against the High Court judgment. He seeks an extension of time to appeal under r 29A of the Rules. The application is opposed by Ms Khatri.

Relevant principles

The principles that govern the exercise of the discretion to grant or deny an extension of time to appeal were summarised by the Supreme Court in Almond v Read.[5] The ultimate question is what the interests of justice require. That necessitates an assessment of the particular circumstances of the case. Factors which are likely to require consideration include:[6]
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or to others with an alleged interest in the outcome;
(e)the significance of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tomar v Khatri

Details

AGLC: Tomar v Khatri [2024] NZCA 301
Case: [2024] NZCA 301
Decision Date: 8 July 2024 at 10.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Vin Tomar sought an extension of time to appeal a High Court judgment that dismissed Monika Khatri's application for a restraining order under section 166 of the Senior Courts Act 2016. The High Court instead exercised its inherent jurisdiction to prohibit Tomar from bringing further proceedings against Khatri unless he paid her outstanding costs in full. Tomar had previously abandoned an appeal from the High Court judgment but now sought to revive it. The Court was required to determine whether Tomar's application for an extension of time to appeal should be granted.

The Court of Appeal considered the principles governing the extension of time to appeal, emphasising that the ultimate question was what the interests of justice required. Factors considered included the length of the delay, reasons for the delay, the conduct of the parties, prejudice or hardship to the respondent, and the significance of the issues raised by the proposed appeal. The Court noted that Tomar's delay in pursuing the appeal and his conduct in other litigation involving Khatri weighed against granting an extension. However, the proposed appeal raised significant public interest issues regarding the power of the High Court to make civil restraint orders, which were addressed in a subsequent Court of Appeal judgment.

Despite the factors weighing against granting an extension, the Court concluded that it was in the interests of justice to permit Tomar to bring his appeal out of time. This was due to the significant public interest issues raised by the proposed appeal concerning the High Court's inherent jurisdiction to make civil restraint orders. The Court also directed the Registrar to appoint counsel to assist the Court if Tomar filed a notice of appeal, to ensure that the relevant legal issues were properly canvassed in the public interest.

The Court granted the application for an extension of time to appeal and directed the Registrar to appoint counsel to assist the Court if an appeal was commenced. There was no order as to costs as Khatri, who was self-represented, could not recover legal costs and had not incurred any material disbursements in opposing the application.

Orders